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Internal armed forces acting on behalf of a foreign power

At paragraphs 91 to 97, the Appeals Chamber examined the conditions under which armed forces fighting against the central authorities of the same State in which they live and operate may be deemed to act on behalf of another State, in other words, the conditions under which those forces may be assimilated to the organs of a State other than that on whose territory they live and operate. It concluded:

96. […] [I]n cases such as that currently under discussion, what is required for criminal responsibility to arise is some measure of control by a Party to the conflict over the perpetrators.[1]

97. It is nevertheless imperative to specify what degree of authority or control must be wielded by a foreign State over armed forces fighting on its behalf in order to render international an armed conflict which is prima facie internal. Indeed, the legal consequences of the characterisation of the conflict as either internal or international are extremely important. Should the conflict eventually be classified as international, it would inter alia follow that a foreign State may in certain circumstances be held responsible for violations of international law perpetrated by the armed groups acting on its behalf.

At paragraph 98 the Appeals Chamber gave the following explanation for the need to supplement international humanitarian law general international law rules concerning the criteria for considering individuals to be acting as de facto state organs:

98. International humanitarian law does not contain any criteria unique to this body of law for establishing when a group of individuals may be regarded as being under the control of a State, that is, as acting as de facto State officials.[2] Consequently, it is necessary to examine the notion of control by a State over individuals, laid down in general international law, for the purpose of establishing whether those individuals may be regarded as acting as de facto State officials. This notion can be found in those general international rules on State responsibility which set out the legal criteria for attributing to a State acts performed by individuals not having the formal status of State officials.

In the course of a review of the relevant rules of general international law in paragraphs 99–144, the Appeals Chamber observed:

120. One should distinguish the situation of individuals acting on behalf of a State without specific instructions, from that of individuals making up an organised and hierarchically structured group, such as a military unit or, in case of war or civil strife, armed bands of irregulars or rebels. Plainly, an organised group differs from an individual in that the former normally has a structure, a chain of command and a set of rules as well as the outward symbols of authority. Normally a member of the group does not act on his own but conforms to the standards prevailing in the group and is subject to the authority of the head of the group. Consequently, for the attribution to a State of acts of these groups it is sufficient to require that the group as a whole be under the overall control of the State.

The Appeals Chamber concluded:

137. In sum, the Appeals Chamber holds the view that international rules do not always require the same degree of control over armed groups or private individuals for the purpose of determining whether an individual not having the status of a State official under internal legislation can be regarded as a de facto organ of the State. The extent of the requisite State control varies. Where the question at issue is whether a single private individual or a group that is not militarily organised has acted as a de facto State organ when performing a specific act, it is necessary to ascertain whether specific instructions concerning the commission of that particular act had been issued by that State to the individual or group in question; alternatively, it must be established whether the unlawful act had been publicly endorsed or approved ex post facto by the State at issue. By contrast, control by a State over subordinate armed forces or militias or paramilitary units may be of an overall character (and must comprise more than the mere provision of financial assistance or military equipment or training). This requirement, however, does not go so far as to include the issuing of specific orders by the State, or its direction of each individual operation. Under international law it is by no means necessary that the controlling authorities should plan all the operations of the units dependent on them, choose their targets, or give specific instructions concerning the conduct of military operations and any alleged violations of international humanitarian law. The control required by international law may be deemed to exist when a State (or, in the context of an armed conflict, the Party to the conflict) has a role in organising, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group. Acts performed by the group or members thereof may be regarded as acts of de facto State organs regardless of any specific instruction by the controlling State concerning the commission of each of those acts.

[1] See also the ICRC Commentary to Article 29 of the Fourth Geneva Convention (Jean Pictet (ed.), Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War, International Committee of the Red Cross, Geneva, 1958, First Reprint, 1994, p. 212):

“It does not matter whether the person guilty of treatment contrary to the Convention is an agent of the Occupying Power or in the service of the occupied State; what is important is to know where the decision leading to the unlawful act was made, where the intention was formed and the order given. If the unlawful act was committed at the instigation of the Occupying Power, then the Occupying Power is responsible; if, on the other hand, it was the result of a truly independent decision on the part of the local authorities, the Occupying Power cannot be held responsible.”

[2] The Appeals Chamber is aware of another approach taken to the question of imputability in the area of international humanitarian law. The Appeals Chamber is referring to the view whereby by virtue of Article 3 of the IVth Hague Convention of 1907 and Article 91 of Additional Protocol I, international humanitarian law establishes a special regime of State responsibility; under this lex specialis States are responsible for all acts committed by their “armed forces” regardless of whether such forces acted as State officials or private persons. In other words, whether or not in an armed conflict individuals act in a private capacity, their acts are attributed to a State if such individuals are part of the “armed forces” of that State. This opinion was authoritatively set forth by some members of the International Law Commission (“ILC”) (Professor Reuter observed that “[i]t was now a principle of codified international law that States were responsible for all acts of their armed forces” (Yearbook of the International Law Commission, 1975, vol. I, p. 7, para. 5). Professor Ago stated that the IVth Hague Convention of 1907 “made provision for a veritable guarantee covering all damage that might be caused by armed forces, whether they had acted as organs or as private persons” (ibid., p. 16, para. 4)). This view also has been forcefully advocated in the legal literature.

As is clear from the reasoning the Appeals Chamber sets out further on in the text of this Judgement, even if this approach is adopted, the test of control as delineated by this Chamber remains indispensable for determining when individuals who, formally speaking, are not military officials of a State may nevertheless be regarded as forming part of the armed forces of such a State.

The Appeals Chamber analysed the “overall control” test that it set out in Tadić, which is used to determine the circumstances in which the acts of a military group could be attributed to a State, such that the group could be treated as a de facto organ of that State, thereby internationalising a prima facie internal armed conflict. It held that the “overall control” test is the applicable law.

144. The test set forth in the Tadić Judgement of “overall control” and what is required to meet it constitutes a different standard from the “specific instructions” test employed by the majority in Aleksovski, or the reference to “direct involvement” in the Tadić Jurisdiction Decision.

145. The “overall control” test calls for an assessment of all the elements of control taken as a whole, and a determination to be made on that basis as to whether there was the required degree of control. Bearing in mind that the Appeals Chamber in the Tadić Judgement arrived at this test against the background of the “effective control” test set out by the decision of the ICJ in Nicaragua,[1] and the “specific instructions” test used by the Trial Chamber in Tadi}, the Appeals Chamber considers it appropriate to say that the standard established by the “overall control” test is not as rigorous as those tests.

146. To the extent that it provides for greater protection of civilian victims of armed conflicts, this different and less rigorous standard is wholly consistent with the fundamental purpose of Geneva Convention IV, which is to ensure “protection of civilians to the maximum extent possible.”[2]

[1] See in this regard, the reference to the “higher standard” of Nicaragua [Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), Merits, Judgement, ICJ Reports (1986), p. 14] in the Majority Opinion, para. 12.

47. The Trial Chamber’s finding is also consistent with the holding of the Appeals Chamber in Tadić that “[w]here the controlling State in question is an adjacent State with territorial ambitions on the State where the conflict is taking place, and the controlling State is attempting to achieve its territorial enlargement through the armed forces which it controls, it may be easier to establish the threshold”.[1] The “overall control” test could thus be fulfilled even if the armed forces acting on behalf of the “controlling State” had autonomous choices of means and tactics although participating in a common strategy along with the “controlling State”.